By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Failure to notify consular officials that
their national has been taken into custody is not a jurisdictional defect in
certification proceedings (99-4-19)
On October 21, 1999, the Houston First District Court of Appeals rejected
the argument that failure to notify El Salvadorian consular officials that an El
Salvadorian national was taken into custody, as required by treaty, is fatal to
a certification of that national to criminal court.
99-4-19. Melendez v. State, ___ S.W.2d ___, No. 01-97-00870-CR, 1999 WL 959216,
1999 Tex.App.Lexis ___ (Tex.App.--Houston [1st Dist.] 10/21/99)[Texas Juvenile
Law 117 (4th Ed. 1996)].
Facts: Appellant, Ricardo Alcides Melendez, was convicted of murder by a jury.
The jury assessed punishment at 60 years confinement. Melendez, 16 years old at
the time of the offense, had been certified by a juvenile court to stand trial
as an adult. In point of error one, Melendez contends that the criminal district
court did not have jurisdiction because the juvenile court's waiver of
jurisdiction violated the Vienna Convention of Consular Relations which provides
for notice to be given to a consular post when a foreign national is taken into
custody, and for the foreign national to be informed that he has the right to
speak with consular officials. Melendez claims to be a citizen of El Salvador
but that no notice was given to the El Salvadoran consulate and he was not
advised that he could speak with consular officials.
In his second point of error, Melendez complains that the district court
erroneously sustained the State's objection to proper defense argument during
the guilt phase. Melendez argues in his third point of error that the criminal
district court also violated the Vienna Convention when, during the punishment
phase, it denied Melendez' motion to suppress evidence of his prior juvenile
adjudications.
On the night of July 23, 1996, nine Hispanic immigrants were living in a Houston
apartment, sleeping in two bedrooms. Early in the evening, 13-year-old Alvarado,
one of the immigrants, heard breaking glass and looked out the apartment window
to see three men shining a flashlight into the cars parked in front of the
apartment. Gomez, another resident of the apartment, also looked out and
recognized two men who had stolen his car stereo the night before. The intruders
drove off in a blue car when they realized they had been seen.
A short time later, Alvarado was awakened by the sound of the bedroom window
being opened and he saw a man climbing through the window pointing a gun. At
that point, Sergio Rochas and Jose "Henry" Alva woke up and the man in
the window fired two shots at them, hitting Alva in the chest. Alva died at the
scene from the gunshot. Police investigators found two spent cartridge cases
from a 9 mm semi-automatic pistol in the parking lot outside the apartment
window.
The night after Alva's murder, Houston police officers stopped a blue car in
which Melendez was riding and discovered a 9 mm pistol under the floor mat near
his right foot. When 16-year-old Melendez was arrested for carrying a weapon, it
was discovered that he was wanted as an escapee from the Texas Youth Commission.
A Houston Police Department firearms examiner later determined that the 9 mm
pistol found in the car near Melendez' foot was the same pistol used to shoot
and kill Alva.
From a police department photo spread, Gomez and Rochas tentatively identified
Melendez as one of the persons they had seen breaking into Gomez' car outside
the apartment. Alvarado positively identified Melendez' photograph as the person
who opened the window and shot Henry Alva.
After the juvenile court waived jurisdiction, Melendez was transferred to
criminal district court where he was indicted for murder. Shortly before trial,
Melendez filed a "Motion to Suppress Evidence of Prior Adjudications of
Delinquency Because of Violation of the Vienna Convention." That trial
resulted in a hung jury, and a mistrial was declared. In a second trial, the
jury found Melendez guilty of murder. During the punishment stage of the trial,
the judge denied Melendez' "Motion to Suppress Evidence of Prior
Adjudications of Delinquency Because of Violation of Vienna Convention."
The State introduced the prior adjudications and questioned Melendez about them.
The jury assessed punishment at 60 years in prison.
Held: Affirmed.
Opinion Text: In his first point of error, Melendez contends that the juvenile
court's disregard of the notice provisions of the Vienna Convention on Consular
Relations [FN1] resulted in an improper waiver of jurisdiction; therefore, the
transfer to criminal district court was void, and that court lacked jurisdiction
to try him for murder. Melendez claims to be a citizen of El Salvador and, as
such, he was entitled to have the El Salvadoran consulate notified that he had
been arrested and that he should have been informed that he could speak with the
consulate officials from his country. Because the State did not provide notice
to the El Salvadoran consulate, or to him, in violation of the notice provisions
of the Vienna Convention, he asserts he was improperly transferred to the
district court. Melendez frames the issue as whether the provisions of the
Vienna Convention have the same importance as the technical notice provisions of
the Texas Family Code which require the State to show that it has satisfied the
statutory notice provisions for the purpose of considering a discretionary
transfer to district court.
To complain of an error in the certification process, a person must appeal the
transfer order itself to the court of appeals. Adams v. State, 827 S.W.2d 31, 33
(Tex.App.--Dallas 1992, no pet.); Lowe v. State, 676 S.W.2d 658, 660-61 (Tex.App.--Houston
[1st Dist.] 1984, pet. ref'd). An appellant may raise only a jurisdictional
error in the transfer process for the first time on appeal from a conviction
after the transfer. Adams v. State, 827 S.W.2d at 33. See Watson v. State, 587
S.W.2d 161, 162 (Tex.Crim.App.1979) (collateral attack on certification
proceeding was proper because record showed summons was not served on Watson in
the transfer proceeding--a jurisdictional requirement).
Section 54.02 of the Texas Family Code authorizes the juvenile court to waive
its exclusive original jurisdiction under certain circumstances and to transfer
a child to the appropriate district court or criminal district court for
criminal proceedings. Tex. Fam.Code § 54.02 (Vernon 1996). The petition and
notice requirements of sections 53.04, 53.05, 53.06 and 53.07 of the Texas
Family Code must be satisfied, and the summons must state that the hearing is
for the purpose of considering discretionary transfer to criminal court. In the
Matter of D.W.M., 562 S.W.2d 851, 852-53 (Tex.1978) (discussing requirements for
waiver of jurisdiction).
Melendez correctly states that, absent satisfaction of the statutory notice
provisions, a juvenile court is without jurisdiction to transfer a juvenile to
district court. Allen v. State, 657 S.W.2d 815-16 (Tex.App.--Houston [1st Dist.]
1982, pet. dism'd as improvidently granted, 659 S.W.2d 410 (Tex.Crim.App.1983).
He then urges this Court to extend the rationale of Allen and equate the
mandatory notice provisions of the Texas Family Code with the notice provisions
of the Vienna Convention on Consular Relations and hold that the juvenile
court's transfer of jurisdiction was not proper.
We decline to hold that the notice provisions of the Vienna Convention create a
new jurisdictional requirement in addition to, or supersede, the notice
requirements of the Texas Family Code. From our review of the relevant treaty
provisions and available authorities, we have concluded that a failure to comply
with those provisions does not operate to deprive a Texas juvenile court of its
authority to transfer a juvenile to district court.
First, it is not settled that an individual has standing to assert a violation
of the convention. Breard v. Greene, 118 S.Ct. 1352, 1354-55 (1998) (reasoning
that absent clear and express statement to the contrary, the procedural rules of
the forum State govern implementation of the treaty in that State but that
Vienna Convention arguably confers right to consular assistance following
arrest); Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir.1997) (reasoning that
even if the Vienna Convention could be said to create individual rights (as
opposed to setting out the rights and obligations of signatory nations), it
certainly does not create constitutional rights nor does it convert violations
of treaty provisions into constitutional rights); United States v.
Esparza-Ponce, 7 F.Supp.2d 1084, 1095-96 (S.D.Cal.1998) (discussing
"murky" inquiry and muddled issue of whether the Vienna Convention
confers individual rights and concluding that a violation of the notice
provisions does not rise to the level of a Miranda violation such as to require
suppression of evidence); Paraguay v. Allen, 949 F.Supp. 1269, 1274
(E.D.Va.1996) (suggesting that the Convention does not confer private
enforceable rights because it is not self-executing), aff'd, 134 F.3d 622 (4th
Cir.1998);
Secondly, at least one state supreme court has held that any failure to satisfy
the notice provisions of the Vienna Convention does not deprive a juvenile court
of jurisdiction in a parental termination/custody proceeding. In re Stephanie
M., 867 P.2d 706 (Cal.1994). The California Supreme Court reasoned that the
treaty language, "giving of this information shall, however, be without
prejudice to the operation of the laws and regulations of the receiving
State," acknowledges that the receiving State has jurisdiction to apply its
own laws to foreign nationals within its border and that such aid is expressly
subject to the practices and procedures of the receiving State. Id. at 712. The
Court concluded that the Convention concedes the jurisdiction of a court of the
receiving state to apply its laws to a foreign national and that the operation
of the receiving state's laws are in no way dependent upon the notice prescribed
by the Convention. Id. at 713. Therefore, failure to give notice does not
invalidate judicial action taken without such notice. Id. at 712-13.
Third, the notice provisions of the Vienna Convention affect only foreign
nationals. Maldonado v. State, No. 72,986, slip op. at 14-15 (Tex.Crim.App. June
30, 1999). The record before this Court does not establish that Melendez is, in
fact, a foreign national. It only shows that Melendez was born in El Salvador on
August 28, 1979 and moved to the United States with his parents in 1985 when he
was five years old. The evidence does not preclude the possibility that Melendez
may have been born in El Salvador to a parent(s) who held United States
citizenship so that he could be an American national under 8 U.S.C. § 1401
(West 1994) or, if his parents became naturalized citizens after his birth, he
could be an American citizen under 8 U.S.C. §§ 1431 or 1432 (West 1994).
Because there is no evidence in the record that Melendez is not a United States
citizen, we cannot conclude that the notice provisions were triggered in the
first instance.
Finally, there is no Texas case on point, and those courts that have considered
the notice provisions of the Vienna Convention under Texas law in other contexts
do not support Melendez' argument that we should impose a jurisdictional
requirement on the juvenile courts of this State for its violation. Cardona v.
State, 973 S.W.2d 412, 417 (Tex.App.--Austin 1998, no pet.) (under facts of
case, violation of notice provisions did not merit reversal of murder
conviction); United States v. $69,530.00 in United States Currency, 22 F.Supp.2d
593, 595 (W.D.Texas 1998) (reasoning that defendant's right to notice that he
can contact foreign consulate is not a constitutional right and, therefore, does
not trigger the exclusionary rule unless the violation infringes on
Constitutional rights).
If the Vienna Convention does not create constitutional rights, it should not
create a jurisdictional requirement under the Texas Family Code for juvenile
transfer proceedings. We agree with the reasoning of the Fifth Circuit Court of
Appeals in Kreimerman v. Casa Veerkamp, which examined whether another treaty
designed to facilitate service of letters rogatory among signatory nations
preempted all other means of effecting service on Mexican nationals, including
the Texas Long-Arm Statute. 22 F.3d 634 (5th Cir.1994). In concluding that the
treaty did not preclude service by all other means, the Fifth Circuit Court of
Appeals reasoned that courts should interpret treaty provisions narrowly for
fear of waiving sovereign rights that the government or people of the State
never intended to cede. Id., at 639.
We hold that a failure to comply with the notice provisions of the Vienna
Convention does not rise to the level of jurisdictional error. The juvenile
court had jurisdiction to transfer Melendez; the district court obtained
jurisdiction to try him for murder. We overrule point of error one.
In his final point of error, Melendez contends that the trial court erred during
the punishment stage of the trial when it denied his motion to suppress evidence
of five prior juvenile adjudications due to Vienna Convention violations which
took place at the time of the prior adjudications. This complaint seems to be an
attempt to right all prior supposed wrongs at one time. Melendez further urges
this Court to analogize a failure to comply with the notice provisions of the
Vienna Convention to the denial of counsel and hold that he is entitled to
collaterally attack the prior adjudications. We decline to do so.
A prior judgment may be collaterally attacked when offered in evidence in a
subsequent proceeding only if it is void or tainted by a constitutional defect.
Galloway v. State, 578 S.W.2d 142, 143 (Tex.Crim.App.1979). A foreign national's
right to be informed that he can contact his consulate is not a constitutional
right. $69,530.00 in United States Currency, 22 F.Supp. at 598. We have already
held that the notice provisions of the Vienna Convention are not jurisdictional
in nature. There has been no showing that Melendez is, in fact, a foreign
national of El Salvador entitled to whatever protections the Vienna Convention
may afford. Finally, the burden of proof is on the party attacking a prior
judgment to demonstrate its invalidity and make an adequate record for appeal.
Hadnot v. State, 851 S.W.2d 378, 380 (Tex.App.--Houston [1st Dist.] 1993, pet.
ref'd). Appellant has not done so. We overrule point of error three.
FN1. Vienna Convention on Consular Relations, April 24, 1963, [1970] 21 U.S.T.
77, T.I.A.S. No. 6820. Article 36 of the treaty states, in pertinent part:
[b] if he so requests, the competent authorities of the receiving State, shall,
without delay, inform the consular post of the sending State if within its
consular district a national of the State is arrested or committed to prison or
to custody pending trial or is detained in any other manner.... The said
authorities shall inform the person concerned without delay of his/her rights
under this sub-paragraph; [c] consular officials shall have the right to visit a
national who is in prison, custody or detention, to converse and correspond with
him and to arrange for his legal representation.
[Editor's Comment: The Court of Appeals is incorrect in stating that the
respondent must take an immediate appeal from a certification order to be
authorized to raise non-jurisdictional issues in the appeal. The facts of this
case occurred after January 1, 1996. Therefore, the respondent could not under
the 1995 amendments to the Family Code take an immediate appeal but must
consolidate his certification claims with claims raised in an appeal from his
conviction in criminal court.. Further, the appeal from the conviction under
Vernon's Ann. C. Cr. P. art. 44.17(c) can include non-jurisdictional as well as
jurisdictional errors in the certification process.]